122 Miss. 151 | Miss. | 1920
This is an appeal from a conviction for murder followed by a death sentence.
On the occasion in question, some sort of a show was being given in the town of Areola with its accompanying crap game, in which game the appellant and Lucius Blevin, among others, were engaged. A controversy arose during the progress of the game between the appellant and Blevin, which Blevin, shortly after reported to the deceased and Tom Williams, both of whom were deputy sheriffs, stating that the- appellant had threatened him with a pistol. The deceased thereupon took the appellant into custody, and was joined shortly thereafter by the other deputy, Tom Williams. What then occurred, according to the state’s theory, will be best told in the language of Williams, who testified on behalf of the state:
‘ ‘ Q. When you saw him next, he was under arrest with Mr. B. L. Williams, the dead man? A. Yes, sir.
‘ ‘ Q. Where was he when you saw him there? A. Out there back of a boarding house, down there at Areola.
“Q. What was Mr. Williams doing with him? A. Mr. Williams was setting down on an old safe there, and the negro was standing out in front of him.
11Q. What did you do — go up where they were ? A. Yes, sir.
“Q. Co ahead and tell what occurred from then on?: A. Mr. Williams told me: ‘Tom, this negro had a pistol
“O Wbo is Lucius? A.. Lucius Blevin, a state witness. He said. ‘No. sir; I haven’t got any shells.’ He loaded up the second time and came back, and the second shot he run un behind me a.s I was crossing the railroad and shot me through the hand, and then shot me through the thumb, and Lucius said. ‘Mr. Tom. olease come on, that nigger’s goinv to kill von,’ and caught ahold, of me, and I said, ‘Turn me aleóse.’ and T went up to the section house and tel'1 Mr. Tnm about it.”
•On eross'examination tins witness further testified that while thev were back of the boarding house, and while the appellant was held by Mat Williams and Lucius
The appellant’s evidence was in sharp conflict with that of the state’s witnesses, and, if true, fully supported his claim „that he killed the deceased in self-defense. His theory of the case is contained in the following questions and answers which appear in the transcript of his evidence in chief:
“Q. Go ahead and tell the jury all about that; they are going- to decide whether you will be hung or not. A. Yes, sir; I will tell them the truth and nothing but the truth. Well, the way it was, from the first beginning, it started about a dollar and a quarter. Albert Kimberly put $1.25. down, and Lucius picked it up. Mat said, ‘I shoot a dollar and a quarter.’ He said: ‘No, I don’t shoot it;, I put the money down there.’ And he looked around and said, ‘Whq got my money?’ The boy said: ‘I ain’t got it; you vain’t put any down there.’ The boy asked me didn’t he put it down there, and I said: ‘Yes, he put'it down, two solid halves and a quarter. I reckon he did. ’ Lucius that time run around to grab me to cut me, and another fellow run in betwixt us, and said, ‘No, I wouldn’t do anything like that, ’ and by that time I went out and got a bride, and he said I drawed a pistol on him. I didn’t do that. Time I got out the house Mat come up and ,said, ‘Boys, I wouldn’t have any trouble. ’ I said, ‘ I ain’t doing nothing, no use for me to let them run over me. ’ I had a brick in my hand then and never pulled a pistol, at all. After that I went around on the front part where the show was and went back in the gambling house. That time Mat was up, in the box cutting off the game, and finally Mir. Tom came in and Mat gets down and gives somebody else his game. Then after he stood around awhile Mr., Tom went to the door and got to whispering around, and Mr. Tom left then. I don’t know where he went. I suspicioned then—
“Q. Which Williams was that? A. Mr. E. L. Williams. He came up to me and said, ‘Where is the gun at?’ I said, ‘I haven’t any,’ and he searched me and didn’t find any. He found a scabbard on me, and said, ‘Where that gun at, nigger?’ I said, ‘I haven’t got any gun. I sent it home by my brother-in-law,’ that very way. So I walks on off, and he said, ‘I told you to stand here, not move any more.’ I said, ‘All right, Cap,’ and! that time Mr. Williams sent for Mr. Tom, and I said, ‘I am going to stand here and won’t move any more.’ That time Mr. Tom came up and ousted bis gun and-puts it in my facfe. I said: ‘That’s all right, white folks; I haven’t got a pistol.’ He curses me and says, ‘You son of a bitch! You get it.’ I said, ‘I haven’t got any gun.’ He says, ‘Boys, get him.’ He said to me, ‘Come around here,’ and I went around there, and he called Mat and Lucius, and they carried me up there to the gin and taken me out there and made me pull my clothes off, and I begged them not to whip me and I would tell them where the gun. He said, No, you don’t know where it is at.’ And they stretched me out, one on my head and one on my feet. Mr. Tom grabbed his gun and hit me once on this side and once on this side (indicating). Mr. Tom grabbed the belt and hit me two licks and the buckle broke off then, and Mr. E. L. Williams said, ‘Go in there and get a gin belt.’ He said,, ‘No, I can’t get in there,’ and that time Mr. Tom walks up and kicks me here on my mouth. My mouth commenced to bleeding all down here, and
“Go on and tell it all. A. So that time Mr. Tom shot off, and that time I started to break to run. I says: ‘No, don’t run. If you do, he will kill you.’ One mind said, ‘Get your gun,’ and that time I eased up to my horse and got my gun from under the pummel of the saddle on my horse, and they makes a shot and I breaks to run, and I runs off in the weeds, and they makes four or five shots at me, and I was running, and I made three shots and run off in the weeds then. They shot me here (indicating)', and shot me there (indicating). That is all.
“Q. Didn’t you go back up thére and shoot them some more? A. No, sir; I did not.”
Section 1237, Code of 1906 (1 Hemingway’s Code, section 967), provides that: “Every person who shall unnec
Judges Ethbidge, Holden, and Stevens are of the opinion that the appellant’s contention that under this statute his conviction should have been limited to manslaughter should be sustained, and the judgment of the lower court reversed; their reasons therefor being set forth in a separate opinion.
■ Judges Sykes, Cook, and Simith are of the opinion that on the evidence it was for the jury to say whether the appellant killed the deceased in the bona-fide resistance of an attempt by the deceased to do an unlawful act, viz. to force him by the use of unlawful means to deliver up his pistol, or whether he killed the deceased, not in order to prevent the commission of the unlawful act, but because of malice engendered in him by the treatment he had just prior thereto received) and was still receiving at the hands of the deceased; that if the appellant killed the deceased becausei of malice so engendered, and not in order* to prevent the commission of the unlawful act, as the jury evidently^ believed, he is guilty of murder, and cite in support thereof Long v. State, 52 Miss. 23; McMaster v. State, 29 So. 522; Brown v. State, 98 Miss. 786, 54 So. 305, 34 L. R. A. (N. S.) 811.
We find no reversible error at all in the other rulings of the trial judge of which complaint is made.
Affirmed, and Friday, the 29'th day of* August, 1919, fixed as the day for the execution of the sentence.
Affirmed.
Holden, J. I think the judgment of the lower court should be reversed because under the statutes, sections 1237 and 1044, Code of 1906, sections 967 and 772, Hemingway’s Code, the crime committed was manslaughter only.
It is conclusively shown by the state’s testimony that the whipping of the appellant in the manner set out was for the purpose of making him disclose the whereabouts of his pistol. The two deputies and the two negroes let the appellant up and went with him toward the house of his brother-in-law where he had stated the pistol was located while he was being whipped upon the ground. After all of the parties had proceeded about three hundred or four hundred yards from the place where the whipping had been administered, there was some brief conversation
The above statement of the case is based upon the testimony introduced by the state. The testimony introduced by the appellant was disbelieved and disregarded by the jury as it had the authority to do, and therefore is not to be considered! as part of the proof in reviewing and discussing this appeal. The facts of the case are limited here to the proof introduced by the state.
Among the errors assigned by the appellant for reversal are: First, the verdict of the jury is contrary to the overwhelming 'weight of the- evidence showing that the appellant acted in necessary self-defense to< save his own life or prevent great bodily harm, the danger of which was then impending; second, that taking the testimony offered by the state as a whole, the appellant would be guilty only of manslaughter, if guilty of any offense; third, that the argument to the jury by the prosecuting attorney with reference to mob law was erroneously permitted bly the court to the injury and prejudice of the appellant’s rights at the trial.
The state contends that no error was committed in the trial court, and that, even though the appellant had been whipped and was unlawfully mistreated by the deceased and the others in the crowd, still appellant was guilty of murder because he shot and killed the deceased, the deputy sheriff Mr. R. L. Williams, at a time when he was in no imminent danger of losing his own life or suffering
The first contention of appellant that he was acting in self-defense when he shot the deceased because of the unlawful whipping he had received, and which he expected would be repeated upon him again in a few minutes, as soon as the deceased and the other parties had discovered the lie he had told as to the location of the pistol in order to be let up from the ground, and that he reasonably anticipated this impending danger, and that he was not required by law to wait until he was in a situation where he could not defend himself against such treatment, is, I think, untenable because the question of iimpending danger at the time of the shooting by the appellant was one for the determination of the jury, and the jury decided this issue against the appellant.
The complaint of the appellant as to the remarks and language used by the prosecuting attorney in his argument to the jury deserves notice. In his argument the prosecuting attorney said to the jury:
“Be it said to the eternal credit of the good citizens of Areola that they permitted this defendant to have a fair trial here in a court of justice, rather than take their vengeance at the hands of an angry mob.”
I disapprove of this character of argument, to the jury, and wish to respectfully announce again that prosecuting attorneys should refrain from referring to mobs or mob law in the trial of a human being in a court of justice. The inferences calculated to he drawn from such comment by ■prosecuting attorneys are likely to be prejudicial to the rights of the accused in securing a fair and impartial trial of his case. I think it was error in the court to permit the prosecutng attorney to use the language complained of in the argument of the case before the jury. However, it is unnecessary to discuss whether or not this error
The point advanced by counsel for appellant that the evidence introduced by the state does not warrant a conviction of murder, but at best would only justify a conviction of manslaughter, is based principally upon our statutes, sections 1044 and 1237, Code of 1906, sections 772 and 967, Hemingway’s Code, which read as follows:
“Sec. 1044. If any person assault and beat another with a cowhide, whip, or stick, having at the time in his possession a pistol or other deadly weapon, with intent to intimidate the person assaulted, and prevent him from defending himself, he shall, on conviction, be imprisoned in the penitentiary not longer than ten years.”
- “Sec. 1237. Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or to do any unlawful act, or after such attempt shall have failed, shall be guilty of manslaughter. ’ ’
The case presented by the state, and as shown particularly by the testimony of M|r. Tom Williams, one of the deputies who was shot by the appellant, substantially shows' that the two armed deputies, one of whom was killed, together with the two negro men, searched the appellant to find his pistol, and, failing in this, they then took him across ‘ [the creek, ’ ’ and! while the two negro men held! him down one of the deputies proceeded to whip bim for the purpose of making him tell what he had done with the pistol. In order to be relieved from the pain of this unlawful chastisement, the appellant told the officers a lie as to where the pistol was located and offered to go with them to get it. They let him- up- and proceeded with him under unlawful duress- in the mission of getting the pistol, and before they reached the place to which they had started the shooting took place and one of the deputies, Mr. Bobert Williams, was killed.
That these officers were in danger from the concealed pistol in the clothes of the appellant is quite true, but it must be remembered that the perilous situation was brought about entirely by the deceased and his associates. The conduct and proceedings of the two white deputies and their two negro assistants were unlawful from the beginning of the whipping until the time of the fatal shooting. Therefore I think the case comes within section 1237 above referred to, and that the contention made by the appellant that this homicide can only be manslaughter is well taken and should be sustained.
The appellant, it appears from this whole record, had no malice or ill feeling toward the. deceased prior to the whipping. They were strangers to each other, and the motive for the shooting was the unlawful treatment im
In Long v. State, 52 Miss. 23, in considering the intent and purpose of section 1237, the court, speaking through Justice ChaijMBRs, said:
‘ ‘ The party slaying, however, cannot take shelter under it if the jury should be of opinion that 'there was actual malice. The killing must have occurred bona fide in the resistance to the unlawful act, or immediately after its! defeat, and must have grown out of the commission, or the attempt to commit the act, and not out of any previous ill will, nor any personal grudge then and there engendered. ”
I think the case at bar comes within the intent and purpose of section 1237, Code of 1906. It means1 that “a legal imputation of heat of blood” is to be indulged in
The statute, section 1237, Code of 1906 (section 967, Hemingway’s Code), necessarily implies an intentional killing, otherwise it means nothing; a purposed but unnecessary killing, a killing which but for the statute would be murder; and, since malice is a necessary ingredient of murder, to hold that if the homicide was malicious the'statute does not apply would be to leave no field for its operation. If the killing was without malice, it would not be murder, and the statute would not be needed; if the existence of malice excludes its operation, it is repealed by construction. True, one cannot take refuge behind its provisions to wreak a personal preexisting malice; nor lie in wait, as in the Brown Case, to execute a formed purpose to kill. But when, as here, it is
A close examination of the authorities will disclose that this opinion is not in conflict with the rule as laid down in any of the cases.
I shall not take the time to discuss the distinction between the holding in the case at bar and the decisions cited as supporting the contrary view; but I may call attention to what must be obvious, that in the Brown Case, 98 Miss. 786, 54 So. 305, 34 L. R. A. (N. S.) 811, from the facts there shown, clearly a previous malice or prior premeditated design existed on the part of the slayer, who had not only threatened to commit the homicide, but who had armed himself with a deadly weapon and lay in ambush for the purpose of doing the killing. This Brown Case seems to hold also (which"by the way was a decision of the question of murder or manslaughter not in the appeal because the jury had acquitted of the murder and found the appellant guilty of manslaughter) that: “Malice essential to a conviction of murder may be ascertained from previous threats and measures taken in preparation, and, too, may arise suddenly and be implied from circumstances as from the intentional use at the outset of a deadly weapon. ’ ’
But when the Brown Case is read and digested, it plainly appears that there was proof’ in the case that the malice aforethought was formed long previous to the time of the killing and some time before the deceased was in the commission of the unlawful act, and that the malice may have been implied as existing prior to the fatal shoot
On Suggestion of Er®o®.
A re-examination of the law of this case has convinced me that I was in error when I voted to affirm the judgment of the trial court, sentencing appellant to death. It is now my opinion that the facts did not warrant a conviction of murder. Section 1237, Code of 1906, was designed to meet just ¡such cases as is made by the record before us.
The judgment of the trial court will be reversed, and the cause remanded for a retrial in accordance with the principles announced in the aforementioned opinion.
Reversed and remanded.